539 F.

2d 860
2 Fed. R. Evid. Serv. 572

UNITED STATES of America, Appellee,

v.
Philip ALBERGO, Defendant-Appellant.
No. 1013, Docket 75-1279.

United States Court of Appeals,

Second Circuit.
Argued May 13, 1976.
Decided June 17, 1976.

George S. Meissner, Brooklyn, N. Y., for defendant-appellant.

Stanley A. Teitler, Asst. U. S. Atty., E. D. N.Y., Brooklyn, N. Y. (David
G. Trager, U. S. Atty. for the E. D. N. Y., Brooklyn, N. Y., of counsel),
for appellee.
Before SMITH, MANSFIELD and VAN GRAAFEILAND, Circuit
Judges.
VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a judgment following a jury verdict in the United States
District Court for the Eastern District of New York convicting defendant of
perjury before a grand jury. 18 U.S.C. 1623(a). We affirm.

In the Spring of 1973, Michael Rigolizzo, an agent of the FBI, began an

investigation into the theft of approximately seven thousand airline tickets. His
efforts uncovered a possible connection between the stolen tickets and Larry
Alfano, manager of the Cross Roads Bar in Queens, New York, and an
associate of his, Mike Augendiso. As a result of Agent Rigolizzo's
investigation, a special grand jury was impanelled; and appellant was one of
approximately 500 witnesses called to testify.

At the outset of his testimony, appellant was informed as to the nature and

scope of the investigation into stolen airline tickets. He was then questioned
regarding his relationship with Larry Alfano and Mike Augendiso and admitted
a personal and business relationship with Alfano and an acquaintanceship with
Augendiso. He also testified in response to inquiry, that he knew a girl named
Loraine and had talked with her on the telephone at the Cross Roads Bar.
4

When the questioning turned to the subject of airline tickets, appellant's

affirmative answers ceased. He denied ever having taken an airline trip or
having purchased or received airline tickets and said he didn't even know what
they looked like. He stated that he had never talked to a "Larry" or "Mike"
about airline tickets and that he knew nobody who had gotten tickets from
Larry or Mike. Appellant's indictment was based on this latter testimony, which
is set forth in full in the margin.1

At the trial which commenced before Judge Judd on June 9, 1975, appellant's
grand jury testimony was introduced into evidence, following which the
prosecution called Agent Rigolizzo to the stand. Rigolizzo testified, over
vigorous defense objection, that he had been engaged for some time in the
investigation of stolen airline tickets; that he had recovered approximately two
thousand of the seven thousand tickets reported stolen; that some of the stolen
tickets had been traced to the Cross Roads Bar, and that he had been able to
connect certain of these tickets to Larry Alfano and Mike Augendiso.

Following this testimony, the Government introduced into evidence four

telephone conversations recorded from wiretaps placed on telephones at the
Cross Roads Bar. They were all between a male speaking from a telephone in
the Bar and a female subsequently identified as Loraine Zencorich. In the first
recording, there are vague references to a trip to Miami and to July 28 as a
departure date for someone named Marsha. There is also an apparently
facetious suggestion by Loraine that the male with whom she was talking get
her a ticket to Australia.

In the second conversation, the male asks if a figure of $340 is correct and
receives an affirmative response. He then states, " . . . we get'em like, say like
half price," so "that would be one hundred and seventy dollars . . . for two."2
The male then refers to a cut on the deal by someone named "Mikie" and states
that he's delivering "them" tonight.

In the third conversation, the male advises Loraine that he has her tickets and
that their actual cost is $171 each.

In the final conversation, Loraine calls the Bar and asks for "Philip". Within
seconds, the male voice which appeared on the three previous tapes is heard.
For the first time, there is mention of "Larry" when the male tells Loraine that
Larry says they had been charged too much for the tickets.

10

After the introduction of these tapes, Officer Paulsen of the New York City
Police Department was called as a witness and identified appellant as the male
speaker.3 As a foundation for this identification, Paulsen testified that he had
heard appellant's voice on tape some 500 different times and that he had on one
occasion visited the Cross Roads Bar and listened to appellant talking with a
group of men at the Bar.

11

Asserted error in connection with the testimony of Agent Rigolizzo and Officer
Paulsen forms the basis of appellant's appeal. Appellant contends that
Rigolizzo's testimony was irrelevant and prejudicial; that the testimony of
Paulsen was insufficient to support his voice identification, and that the manner
in which such identification was made was unduly suggestive and therefore
violative of due process.

Agent Rigolizzo's Testimony

12

While conceding the need for the Government to establish that his allegedly
false statements were material to the investigation being conducted by the
grand jury, see United States v. Moran, 194 F.2d 623 (2d Cir.), cert. denied,
343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362 (1952), appellant contends that
such materiality could have been proven with evidence less prejudicial than the
testimony of Rigolizzo. He suggests, for example, that the grand jury foreman
could have been called as a witness. See e. g., United States v. Alu, 246 F.2d 29
(2d Cir. 1957). He also suggests that Rigolizzo's testimony was offered
primarily for the improper purpose of raising an inference that Larry Alfano
had stolen tickets and that appellant knew this to be so.

13

Judge Judd very carefully instructed the jury, however, that no such inferences
could be drawn. He said:

14 fact that there might have been some stolen airline tickets, that was the subject
The
of the investigation and that's been referred to. That is not grounds for convicting
this defendant on a perjury charge. He (the appellant) is not charged with possession
of stolen tickets or with aiding in the possession of stolen tickets. The testimony by
Mr. Rigolizzo with respect to the fact that he had traced some of the stolen tickets to
the Cross Roads Bar, has a bearing on the materiality of the question and on the

importance of the finding out as much as could be learned about dealings in the
Cross Roads Bar. But it does not permit you to infer that Mr. Alfano had stolen
tickets, nor that Mr. Albergo knew Mr. Alfano had stolen tickets.4
15

The balancing of relevance against prejudice is primarily for the trial judge;
and, without a showing of abuse, his exercise of discretion will not be
overturned. United States v. Chapin, 169 U.S.App.D.C. 303, 515 F.2d 1274,
1284 (1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975).
Agent Rigolizzo's testimony was not only material to an understanding of what
took place before the grand jury; it was also relevant to an understanding of the
taped conversations introduced during the trial. If, as appellant contends, the
trial jury would have been fully aware of the scope of the grand jury
investigation without this testimony, it could hardly be considered prejudicial.
Indeed, there was virtually nothing in the testimony that was not easily inferred
from the grand jury minutes. When, as part of an investigation into stolen
airline tickets a witness is asked whether he knows "who's gotten airline tickets
from Larry or from Mike", one would have to be extremely naive not to assume
that Larry and Mike were connected in some way with the theft. In view of the
careful manner in which Judge Judd circumscribed the use of Rigolizzo's
testimony, we see no prejudicial error in its admission.

Officer Paulsen's Testimony

16

In his challenge to Officer Paulsen's testimony, appellant takes somewhat

inconsistent positions. He argues, on the one hand, that identification of his
voice required a "face to face" conversation with him, apparently finding no
hint of undue suggestion in such individual confrontation. On the other hand, he
contends that when Officer Paulsen identified his voice from among six men
talking together at the Cross Roads Bar, this procedure was unduly suggestive.
We find no merit in either argument.

17

A telephone conversation is admissible in evidence if the identity of the

speaker is satisfactorily established. United States v. Biondo, 483 F.2d 635 (8th
Cir. 1973), cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563 (1974),
and the question is for the jury if, as reasonable men, they could find the
claimed identification to be accurate. United States v. Alper, 449 F.2d 1223,
1229 (3d Cir. 1971), cert. denied,405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453
(1972). Identification may be based upon a subsequent acquaintanceship with
the speaker. United States v. Borrone-Iglar, 468 F.2d 419 (2d Cir. 1972) (per
curiam), cert. denied,410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973).
Indeed, it may be adequate, although the persons involved have never
personally met. United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975).

Impossibility of error is not a prerequisite to the admissibility of evidence.

United States v. Wilkes,451 F.2d 938, 939 (2d Cir. 1971); United States v.
Easterday, 57 F.2d 165, 167 (2d Cir.), cert. denied, 286 U.S. 564, 52 S.Ct. 646,
76 L.Ed. 1297 (1932). Where, as here, the identifying officer had listened to
appellant's voice in over 500 taped conversations, his testimony was sufficient
to permit the jury, as responsible men, to identify appellant as the "Philip" who
participated in the four conversations at issue.
18

In his argument based on suggestiveness, appellant attempts to analogize

Paulsen's voice identification to the lineup identification of participants in
crimes. This argument is misplaced. Appellant was being tried for perjurious
grand jury testimony, not for illegal telephone conversations. Moreover, the
requirements for voice authentication do not differ markedly from those for
document authentication. Once a prima facie case of authorship is made out by
the proponent of the evidence, the testimony is admissible; and the reliability of
the identification is for the jury. Carbo v. United States,314 F.2d 718, 743 (9th
Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964).
The "due process" procedure urged by appellant would, if generally applied,
make a mockery of Rule 901 of the new Federal Rules of Evidence which
requires only that the opinion of the witness be "based upon hearing the voice
at any time under circumstances connecting it with the alleged speaker".
Without deciding whether there might be some conceivable circumstances in
which appellant's due process contentions would have merit, we hold that they
have none here.

19

Appellant argues, almost in passing, that the questions posed to him by the
grand jury were ambiguous. This argument may be as summarily disposed of.
To a person predisposed to answer truthfully, the questions were clear. See
United States v. Bonacorsa, 528 F.2d 1218 (2d Cir. 1976).

20

The judgment is affirmed.

MANSFIELD, Circuit Judge (dissenting):

21

Although I concur in most of my brother Van Graafeiland's thoughtful opinion,

I must respectfully dissent from that part which deals with the district court's
admission into evidence of FBI Agent Rigolizzo's hearsay testimony to the
effect that in the course of his investigation he had learned of the theft of some
7,000 blank airline tickets, at least some of which had later passed through the
Cross Roads Bar and were connected with Mike Augendiso and Larry Alfano,
the latter being the manager of the bar. This testimony was not relevant to any

issue properly before the jury and its admission before the jury in the
circumstances of this case was highly prejudicial to the defendant. Its effect
was to paint the defendant as an associate of known traffickers in stolen airline
tickets, since he had made his telephone calls from the Cross Roads Bar and
had admitted to the grand jury that he had met Mike Augendiso there and had
accompanied Larry Alfano to Augendiso's house.
22

This testimony was purportedly offered only to show that the evidence sought
to be elicited from the defendant was material to the grand jury's inquiry, but
the contention that it was properly admitted on this basis simply cannot be
sustained. The materiality of the subject concerning which a defendant is
alleged to have perjured himself is a question of law for the court, not a
question for the jury. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct.
268, 73 L.Ed. 692 (1929); United States v. Marchisio, 344 F.2d 653, 665 (2d
Cir. 1965). Since there was no need for the jury to hear the prejudicial
evidence, the proper course was for the judge to excuse the jury, receive the
testimony out of the jury's presence, and make his ruling on materiality. See
United States v. Whitted, 454 F.2d 642, 646-47 (8th Cir. 1972); Harrell v.
United States, 220 F.2d 516, 520 (5th Cir. 1955) (dictum).1 Indeed the test of
materiality whether a false answer might tend to influence, impede or dissuade
the grand jury in its investigation is fixed at such a low level that only a
minimal amount of proof need be presented to the court to establish materiality;
a showing from the grand jury minutes or a statement from the prosecutor that
the grand jury was investigating the matter under inquiry would suffice in most
cases.

23

Allowing the jury in this case to hear the testimony could not be deemed
harmless error. Without Rigolizzo's testimony the jury might have had serious
doubts about whether the defendant Albergo was referring to airline tickets,
stolen or otherwise, in his taped phone conversations from the bar, since neither
he nor the other party to these conversations (Loraine Zencorich) ever referred
to airline tickets, much less to stolen ones. But on the basis of Rigolizzo's
hearsay testimony to the effect that defendant's admitted friends, Larry and
Mike, one of whom was the owner of the bar from which Albergo was
telephoning, had been "connected with" the stolen tickets, some of which had
been recovered from Larry, the trial jury would have an understandable
tendency to assume that because the defendant's friends were said to be
trafficking in stolen tickets, Albergo must have been conducting sales of those
tickets in his telephone conversations, and had therefore lied to the grand jury
when he testified that he knew nothing about airline tickets "gotten . . . from
Larry and Mike." In short the tendency of this testimony was to convict
Albergo through guilt by association.

24

Even if we assume arguendo that Rigolizzo's testimony might properly be

admissible for a limited purpose, it is doubtful that its probative value would
outweigh this prejudice to the defendant, see Fed.R.Ev. 403, or that the latter
could be cured by an instruction, buried amidst other charges, to the effect that
the testimony did not permit the jury to infer participation by the defendant in
the handling of stolen tickets. But where, as here, the testimony was wholly
irrelevant to those issues properly before the jury, and thus entirely
unnecessary, it was clearly erroneous to admit it at all. Under such
circumstances, the error could hardly be remedied by such an instruction, which
might be countenanced in other instances. "The naive assumption that
prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal
v. United States, 332 U.S. 539, 559 (68 S.Ct. 248, 257, 92 L.Ed. 154), all
practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore
& Ohio R. Co., 2 Cir., 167 F.2d 54." Krulewitch v. United States, 336 U.S. 440,
453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Justice Jackson concurring).

25

I must also emphatically disagree with the majority's statement to the effect that
one could assume from the prosecutor's questioning of the defendant regarding
whether he knew "who's gotten airline tickets from Larry and Mike" that "Larry
and Mike were connected in some way with the theft." This assumption
violates basic evidentiary principles. On the contrary, trial judges routinely
instruct juries every day that counsel's mere questions do not constitute
evidence and that they cannot provide an evidentiary basis for any inference.
Only answers are evidence. In this case the only evidence forming a basis for
such an assumption is found in the improperly admitted hearsay answers
furnished by Agent Rigolizzo.

26

For these reasons I would reverse and remand the case for a new trial.

Q. Do you know anybody else, anybody at all who's gotten airline tickets from
Larry or from Mike?
A. No, Sir. I know nothing about airline tickets.
Q. You know nothing?
A. No.
Q. No question in your mind?
A. No nothing.

The Government established that the round trip air fare between New York and
Miami for two persons was $342

The taps on the Cross Roads Bar telephones were placed by the New York
Police Department as part of a separate investigation

Judge Judd also instructed the jury:

Mr. Alfano is not on trial for stealing airline tickets, nobody is on trial for
possession of airline tickets. The caution (sic question) is simply whether Mr.
Albergo gave full and truthful answers.

United States v. Moran, 194 F.2d 623 (2d Cir.), cert. denied, 343 U.S. 965, 72
S.Ct. 1058, 96 L.Ed. 1362 (1952), on which the government relies in arguing
that the jury might hear this evidence, does not support that position. Moran
rejected the argument that the court alone should have heard evidence bearing
only on materiality solely on the ground that the point had not been properly
raised below in the case. Id. at 626. Here a proper objection was made